When discussing conflicts in the realm of arbitration, the focus typically lies on the disputes between the involved parties. These disputes stem from competing claims, contested facts, and varying legal interpretations that necessitate the arbitration process itself. While this aspect of conflict is crucial and extensively analyzed, there exists another type of conflict that receives far less attention. This is an internal conflict present within the practitioner, occurring in the space between professional standards and the allure of professional convenience. This internal struggle can arise at various stages: during appointments, disclosures, deliberations, and even at the counsel’s table. This article delves into these often-overlooked conflicts which significantly impact what international arbitration ultimately delivers to its participants.
The Conflict at Appointment
Any seasoned arbitration practitioner is likely acquainted with the complexities of appointments that exist in a grey area. Perhaps there is a longstanding yet professionally distant relationship with the appointing party’s counsel, or a prior instruction from a related entity that ended amicably years ago. Maybe a previously published article touched on relevant legal issues but was balanced and predates the current dispute. Although none of these factors alone might concern a reasonable observer, collectively or in a specific context, they could raise questions.
At such moments, the practitioner faces a real internal conflict. On one hand, there lies an enticing professional opportunity—a significant appointment, a substantial case perfectly suited to the practitioner’s expertise. On the other hand, there is a fundamental question that must be addressed: Can I approach this case with the openness expected by the parties involved? This introspective question demands more than the International Bar Association (IBA) Guidelines, which provide a framework for categories of relationships requiring disclosure.
The internal conflict at this stage is a struggle between honest self-assessment and professional ambition. An arbitrator who accepts an appointment without certainty about their impartiality hasn’t broken any rules—but they have made a personal choice about their professional integrity rather than about the guidelines.
The Conflict in Disclosure
Disclosure in arbitration involves both technical and principled dimensions. While the technical aspects are well-regulated, with practitioners making necessary disclosures consistently across various proceedings, the principled dimension is where internal conflicts reside. The principle of disclosure is not merely about procedural compliance; it is about enabling parties to make informed decisions regarding the tribunal’s composition. A practitioner who genuinely understands this principle will disclose not just what is formally required, but also what a reasonable party might want to know, even if it falls below the threshold of disclosure lists like the Orange List.
This conflict arises when there is a gap between what is technically required and what is ethically essential. Situations such as a new instruction from a related entity during proceedings, or a past professional connection that might be viewed differently by a party, create dilemmas that test the practitioner’s commitment to transparency over convenience.
Disclosure should be viewed as an ongoing obligation rather than a one-time requirement. Deviations from this standard represent significant ethical lapses in international arbitration due to their invisibility to the affected parties.
The Conflict in the Award
Once in the deliberation room, the nature of conflict shifts. By this stage, the appointment is made, and disclosures are either fulfilled or not. The remaining obligation is to render a decision, and the conflict here lies between producing an award that truly reflects the case record and one that is easier to justify. This ‘easier’ award may superficially follow previous case reasoning or reach a defensible conclusion through a path not fully supported by the case details.
From my experience arbitrating complex, high-value disputes, it becomes clear that the ethical obligation is to engage thoroughly with the specifics of each case. Resisting the tendency to rely on the familiar and confirmatory is not just a matter of quality—it’s an ethical imperative.
The Conflict at the Counsel’s Table
Ethical considerations in arbitration are often seen as the arbitrator’s responsibility, yet the counsel’s role is equally critical and less frequently scrutinized. Counsel must navigate responsibilities to their client while maintaining duties to the tribunal and the arbitration process. These duties can diverge, creating significant ethical challenges.
Such conflicts can manifest in various ways: omitting adverse legal authorities from submissions, characterizing evidence in ways not fully supported by transcripts, or making procedural applications more for strategic delay than genuine merit. These actions, often shaped by adversarial pressures, highlight the choices practitioners face and their ethical implications within the arbitration framework.
The Practitioner-Defining Conflict
The conflicts described here—from appointment to disclosure, deliberation, and counsel’s advocacy—share a common theme: a choice between professional convenience and genuine adherence to the arbitration process. These decisions are typically made without external oversight or accountability, underscoring their significance in shaping the ethical landscape of arbitration.
Ultimately, ethics in arbitration is not just about compliance or academic discussion. It is about the individual practitioner’s response to the internal conflicts presented by the arbitration process—a response that becomes their enduring professional legacy.
About the author: Dr. Mahmood Hussain is the Founding Partner of M&CO Legal.
